A05-1230

In re the Marriage of:

Kurt J. Stimpfl, petitioner,

Respondent,

vs.

Kristi L. Stimpfl,

Appellant.

Filed February 7, 2006

Affirmed

Randall, Judge

Lake of the Woods County District Court

File No. F3-03-182

George A. Duranske, III, 1435 Anne Street Northwest, P.O. Box 1383, Bemidji, MN 56619 (for appellant)

Alan B. Fish, Alan B. Fish, P.A., 109 Second Street Northeast, Roseau, MN 56751 (for respondent)

Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

In this appeal from a custody determination in a dissolution judgment, an order allowing the children’s removal from Minnesota, and a denial of a motion for a new trial, appellant-mother argues that the district court did not fully address the custody factor of the children’s primary caretaker; the district court improperly adopted respondent-father’s proposed order; the order allowing removal does not address the required statutory criteria; the district court abused its discretion in declining to award her maintenance; and a new trial is required because she was unfairly treated by the district court. We conclude the district did not abuse its discretion and properly addressed the statutory custody factors in its custody and removal determinations. We conclude the district court did not abuse its discretion in denying maintenance to appellant and declining to consider appellant’s allegations of bias. We affirm on all issues.

FACTS

A judgment dissolved the twelve-year marriage of appellant Kristi Stimpfl, n/k/a Kristi Wells, and respondent Kurt Stimpfl in 2004. The judgment granted to appellant sole physical custody of the parties’ three children, ages seven, four, and three; the parties shared joint legal custody. Both parties have college degrees in chemistry. Before their children were born, both worked as chemists for Solvay Pharmaceuticals; after the birth of the first child, appellant worked briefly and then stayed home to care for the children. Respondent still works for Solvay.

After the parties’ separation in 2003, appellant moved with the children close to her parents’ home in Bemidji; respondent stayed in the family home in Baudette. The district court initially ordered temporary joint legal custody, with temporary physical custody to appellant. The district court appointed a guardian ad litem and a custody evaluator and ordered psychological evaluations for both parties.

In March 2004 appellant obtained an emergency ex parte order for protection against respondent, alleging that two of the children had reported symptoms consistent with sexual abuse. After investigation, the OFP was dismissed.

The parties experienced significant difficulties at parenting-time exchanges, which led, on at least one occasion, to police involvement. In November 2004, the district court, after issuing an order to show cause why temporary custody should not be changed due to ongoing problems with parenting-time exchanges, ordered a change of temporary physical custody to respondent and supervised visitation with appellant.

After a two-day trial, the district court issued its judgment allocating sole physical custody to respondent and awarding parenting-time to appellant. Respondent indicated at trial that he intended to move to Georgia with the children to take a job opportunity with Solvay, his current employer. The district court denied appellant’s motions to disqualify the guardian ad litem and the custody evaluator and to reopen the record.

The district court later held a hearing on the proposed move, denied appellant’s motion for a new trial, and granted permission for respondent to remove the children to Georgia. On appeal to this court, appellant challenges the physical custody determination, the order allowing removal, the denial of maintenance to her in the dissolution judgment, and the denial of her motion for a new trial.

D E C I S I O N

Appellate review of a custody determination is narrow and “limited to whether the [district court] abused its discretion by making findings unsupported by the evidence or improperly applying the law.” Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted). We will not reverse a district court’s factual finding supporting a custody determination unless that finding is clearly erroneous. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000); Minn. R. Civ. P. 52.01. A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. We view the record in the light most favorable to the district court’s determination. Id. Appellate courts give deference to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Minnesota law requires that a district court base its custody determination on the best interests of the child, Minn. Stat. ง 518.17, subd. 3(a)(3) (2004), and consider the best-interests factors listed in Minn. Stat. ง 518.17, subd. 1 (2004). A district court must make “detailed findings on each of the [best-interests] factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.” Minn. Stat. ง 518.17, subd. 1; see also Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993) (stating that findings must explain how application of best-interests factors support legal conclusions), review denied (Minn. Jan. 28, 1994).

Appellant argues that the district court erred by failing to indicate in its findings how the best-interests factors supported its granting of custody to respondent. In particular, appellant contends that the district court gave insufficient weight to the application of the primary-caretaker factor enunciated in Pikula v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985), because the evidence showed that appellant was the children’s primary caretaker before the parties’ separation. However, the “primary caretaker” factor relied on in Pikula is no longer dispositive of the children’s best interests. After Pikula, the Minnesota legislature amended the best-interests statutory provisions, which now require that “[t]he court may not use one factor to the exclusion of others. The primary caretaker factor may not be used as a presumption in determination of the best interests of the child.” Minn. Stat. ง 518.17, subd. 1(a); see 1989 Minn. Laws ch. 248, ง 2; 1990 Minn. Laws ch. 574, งง 13-14.

The district court made findings on all of the custody factors listed in Minn. Stat. ง 518.17, subd. 1. These include the children’s primary caretaker; the intimacy of the relationship between each parent and the children; the interaction and interrelationship of the children with each parent and other significant persons; the children’s adjustment to home, school, and community; the desire for continuity; the mental and physical health of the parties; the permanence of the proposed custodial home; the children’s religious background and education; the capacity of each parent to give the children love and guidance; and the disposition of each parent to encourage and permit frequent and continuing contact of the children with the other party.

In particular, the district court found that although both parties love their children, many parenting-time exchanges were unsuccessful when the children were upset, and that appellant had no inclination to encourage the children to see respondent, acting in a way intended to impede the exchange and cause emotional trauma. The record supports this finding. The record contains reports of the guardian ad litem, a responding police officer, and the supervisor of a parenting-time exchange location that appellant made inappropriate comments in front of the children, the children appeared to have been coached not to go with respondent, and when the children were reluctant to go with respondent, appellant would ask, rhetorically, what she was supposed to do. In contrast, the record contains no evidence that respondent acted inappropriately during these exchanges.

Appellant argues that the district court improperly ignored the bonding of the children with her, as shown by the oldest child’s placing of numerous phone calls to her during the custody change period. But the district court listened to the tapes of these conversations and properly drew inferences from that evidence in assessing credibility. The tapes contain conversations in which appellant, among other things, did not discourage the child from calling 9-1-1 to request removal from respondent’s house. See Nelson v. Lutheran Mut. Life Ins. Co., 311 Minn. 527, 529, 249 N.W.2d 445, 447 (1976) (stating that factfinder must choose between conflicting evidence and diverse inferences that may be drawn from that evidence). This court on appeal “cannot reweigh the evidence presented to the [district] court.” Vangsness, 607 N.W.2d at 475.

The record further supports the district court’s findings on appellant’s court-ordered psychological evaluation, which suggested the possibility of acquired impairment of cognitive functioning and psychopathology, with identification of a possible delusional disorder and a recommendation for further neurological follow-up. The record shows that appellant, after briefly meeting with a psychiatrist, refused to provide the psychiatrist with releases to enable a complete assessment before the custody trial. Although respondent’s court-ordered psychological report indicated some defensiveness, the evidence provides no indication of adverse conduct affecting his relationship with the children. See Minn. Stat. ง 518.17, subd. 1(b) (stating that in making a custody determination,court shall not consider conduct not affecting proposed custodian’s relationship with the child).

Appellant argues that the district court clearly erred in its finding that the children’s cultural background, including their grandfather’s Native American heritage, is not a significant custody factor. We disagree. The district court correctly noted that no evidence was introduced at trial on this factor. The district court did not err in implicitly adopting the custody evaluator’s report, which noted a slight Native American background but indicated that it was “not a significant factor” in the custody determination.

Appellant asserts that the district court improperly adopted respondent’s proposed findings of fact and conclusions of law. Although verbatim adoption of a party’s proposed findings and conclusions of law raises the issue of whether the district court independently weighed the evidence, it is not reversible error per se. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1993), review denied (Minn. Feb. 12, 1993). The district court took testimony from twenty witnesses in a two-day trial and listened to three hours of appellant’s taped conversations with the oldest child. We cannot conclude on this extensive record that the court did not independently weigh the evidence.

II.

Appellant challenges the district court’s order allowing respondent to remove the children to Georgia. We review a district court’s order permitting permanent removal of a child from the state for an abuse of discretion. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

A physical custodian may not remove a child from the state without the consent of the other parent or a court order permitting removal. Minn. Stat. ง 518.175, subd. 3 (2004). But it is presumed that removal will be permitted. See Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (recognizing presumption permitting removal when parent has sole custody); Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (extending Auge to instances when one parent has sole physical custody and parents share joint legal custody). To defeat this presumption, the party requesting removal must offer evidence that would establish that (1) removal is not in the best interests of the child and would endanger the child’s health and well-being or (2) removal is intended to interfere with parenting time. Silbaugh, 543 N.W.2d at 641. The district court may grant permission to remove without a full evidentiary hearing unless the parent opposing removal “‘can make a prima facie showing against removal.’” Id. (quoting Auge, 334 N.W2d at 396).

Appellant argues that the district court made insufficient findings to support its decision to allow respondent to remove the children to Georgia. In allowing removal, the district court found that the move was in the best interests of the children and that it was for employment purposes, not for the purpose of interfering with appellant’s parenting time. These findings properly state the required criteria for removal and are supported by respondent’s trial testimony that his employer, Solvay, had announced a 25% layoff because of product loss and was attempting to make internal transfers, resulting in an offer to transfer respondent’s job to Atlanta. Although the district court did not order a full evidentiary hearing, the record indicates that the district court considered more than 25 affidavits, mostly relating to appellant’s parenting ability, submitted by appellant in her challenge to the removal motion. On this record, we cannot conclude that the district court abused its discretion in allowing the move.

III.

Appellant argues that the district court abused its discretion in declining to award her maintenance. To reverse a district court’s determination on maintenance, this court must conclude that the district court abused its discretion by resolving that issue in a manner “that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

A district court may order maintenance if a party lacks sufficient property to provide for the party’s reasonable needs or if a party is unable to provide self-support through adequate employment. Minn. Stat. ง 518.552, subd. 1(a), (b) (2004). In making this determination, the district court must consider “all relevant factors,” including available financial resources, the probability of self-support, the contributions of each party to marital property, marital property apportioned to the spouse seeking maintenance, the marital standard of living, the duration of the marriage, and the proposed obligor’s obligation to meet his or her needs. Minn. Stat. ง 518.552, subd. 2(a)-(h) (2004). The party seeking maintenance has the burden to produce evidence on these factors at trial. See Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (stating that statute implicitly places burden on spouse seeking maintenance to prove need for it).

Appellant contends that the district court improperly failed to make findings on all of the statutory maintenance factors. But while the district court must consider all relevant factors, it need not make findings regarding each factor. Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986). The district court made findings on the parties’ educations and work histories, as well as appellant’s past and present receipt of financial contributions from her parents, including rent-free housing on their land. The district court also found that appellant was able to be gainfully employed and had been granted temporary maintenance to allow her to look for employment, an opportunity she had not pursued. These findings are sufficient to demonstrate consideration of the relevant statutory factors and are not clearly erroneous. The evidence shows that appellant lives in a fully furnished trailer home on land owned by her parents and does not currently pay rent. Although appellant testified that she left employment in 1998 because of a heart problem, she produced no medical records to attribute leaving work to her heart condition, and no evidence to show a lack of employment in her field in the Bemidji area. Further, the district court was not required to consider new evidence on her request for maintenance submitted for the first time at a posttrial hearing. On the record as presented, the district court did not abuse its discretion in denying maintenance.

IV.

Appellant argues for a new trial based on a lack of fundamental fairness, including: (1) improper ex parte communication between the guardian ad litem and the custody evaluator and the district court judge, resulting in appellant being called in on short notice to show cause that she should not lose temporary custody; and (2) bias on the part of the Lake of the Woods County sheriff, who, appellant contends, failed to appear for testimony although under subpoena, and whose deputies allegedly treated appellant with disrespect during trial.

The record does not show improper statements made to the district court by either the guardian ad litem or the custody evaluator. The hearing on the change of temporary custody occurred only after difficult parenting-time exchanges, at least one of which resulted in police involvement, so that the district court properly convened the hearing to determine the best interests of the children. The district court had previously stated that failing to comply with its previous parenting-time order could result in a contempt order and a change of temporary custody.

The record does not demonstrate the existence of bias on the part of the sheriff. Because appellant did not raise the issue of the sheriff’s failure to respond to the subpoena until the posttrial hearing, the district court did not abuse its discretion in failing to consider it. See Minn. Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) (determining that district court did not abuse discretion in denying new trial motion when moving party “raised a new theory and a new factual argument for the first time”).

Affirmed.